Kansas DUI Statute

Kansas DUI Statute

K.S.A. 8-1567 is the primary Drunk Driving statute for Kansas. However, there are many provisions which relate to DUI defense.

On July 1, 2012 the Kansas DUI Statutes changed. One of the main changes was that it criminazlied refusing to take a chemical test. The following is the provision which criminalizes refusals.

Be it enacted by the Legislature of the State of Kansas:

New Section 1. On and after July 1, 2012, the amount of $250 from

each fine imposed for a violation of a city ordinance prohibiting the acts

prohibited by K.S.A. 8-1567 or 8-2,144 or section 2, and amendments

thereto, shall be remitted by the judge or clerk of the municipal court to

the state treasurer in accordance with the provisions of K.S.A. 75-4215,

and amendments thereto. Upon receipt of each such remittance, the state

treasurer shall credit the entire amount to the community corrections

supervision fund established by K.S.A. 2011 Supp. 75-52,113, and amend-

ments thereto.

New Sec. 2. (a) Refusing to submit to a test to determine the pres-

ence of alcohol or drugs is refusing to submit to or complete a test or

tests deemed consented to under subsection (a) of K.S.A. 8-1001, and

amendments thereto, if such person has:

(1) Any prior test refusal as defined in K.S.A. 8-1013, and amend-

ments thereto, which occurred: (A) On or after July 1, 2001; and (B) when

such person was 18 years of age or older; or

(2) any prior conviction for a violation of K.S.A. 8-1567 or 8-2,144,

and amendments thereto, or a violation of an ordinance of any city or

resolution of any county which prohibits the acts that such section pro-

hibits, or entering into a diversion agreement in lieu of further criminal

proceedings on a complaint alleging any such violations, which occurred:

(A) On or after July 1, 2001; and (B) when such person was 18 years of

age or older.

(b) (1) Refusing to submit to a test to determine the presence of

alcohol or drugs is:

(A) On a first conviction a class A, nonperson misdemeanor. The per-

son convicted shall be sentenced to not less than 90 days nor more than

one year's imprisonment and fined not less than $1,250 nor more than

$1,750. The person convicted shall serve at least five consecutive days'

imprisonment before the person is granted probation, suspension or re-

duction of sentence or parole or is otherwise released. The five days'

imprisonment mandated by this subsection may be served in a work re-

lease program only after such person has served 48 consecutive hours'

imprisonment, provided such work release program requires such person

to return to confinement at the end of each day in the work release

program. The person convicted, if placed into a work release program,

shall serve a minimum of 120 hours of confinement. Such 120 hours of

confinement shall be a period of at least 48 consecutive hours of impris-

onment followed by confinement hours at the end of and continuing to

the beginning of the offender's work day. The court may place the person

convicted under a house arrest program pursuant to K.S.A. 2011 Supp.

21-6609, and amendments thereto, to serve the five days' imprisonment

mandated by this subsection only after such person has served 48 con-

secutive hours' imprisonment. The person convicted, if placed under

house arrest, shall be monitored by an electronic monitoring device,

which verifies the offender's location. The offender shall serve a minimum

of 120 hours of confinement within the boundaries of the offender's res-

idence. Any exceptions to remaining within the boundaries of the of-

fender's residence provided for in the house arrest agreement shall not

be counted as part of the 120 hours;

(B) on a second conviction a class A, nonperson misdemeanor, except

as provided in subsection (b)(1)(C). The person convicted shall be sen-

tenced to not less than 90 days nor more than one year's imprisonment

and fined not less than $1,750 nor more than $2,500. The person con-

victed shall not be eligible for release on probation, suspension or reduc-

tion of sentence or parole until the person has served at least 90 days'

imprisonment. The 90 days' imprisonment mandated by this subsection

may be served in a work release program only after such person has served

48 consecutive hours' imprisonment, provided such work release program

requires such person to return to confinement at the end of each day in

the work release program. The person convicted, if placed into a work

release program, shall serve a minimum of 2,160 hours of confinement.

Such 2,160 hours of confinement shall be a period of at least 48 consec-

utive hours of imprisonment followed by confinement hours at the end

of and continuing to the beginning of the offender's work day. The court

may place the person convicted under a house arrest program pursuant

to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the 90

days' imprisonment mandated by this subsection only after such person

has served 48 consecutive hours' imprisonment. The person convicted, if

placed under house arrest, shall be monitored by an electronic monitoring

device, which verifies the offender's location. The offender shall serve a

minimum of 2,160 hours of confinement within the boundaries of the

offender's residence. Any exceptions to remaining within the boundaries

of the offender's residence provided for in the house arrest agreement

shall not be counted as part of the 2,160 hours;

(C) on a second conviction a nonperson felony if the person has a

prior conviction which occurred within the preceding 10 years, not in-

cluding any period of incarceration. The person convicted shall be sen-

tenced to not less than 90 days nor more than one year's imprisonment

and fined not less than $1,750 nor more than $2,500. The person con-

victed shall not be eligible for release on probation, suspension or reduc-

tion of sentence or parole until the person has served at least 90 days'

imprisonment. The 90 days' imprisonment mandated by this subsection

may be served in a work release program only after such person has served

48 consecutive hours' imprisonment, provided such work release program

requires such person to return to confinement at the end of each day in

the work release program. The person convicted, if placed into a work

release program, shall serve a minimum of 2,160 hours of confinement.

Such 2,160 hours of confinement shall be a period of at least 48 consec-

utive hours of imprisonment followed by confinement hours at the end

of and continuing to the beginning of the offender's work day. The court

may place the person convicted under a house arrest program pursuant

to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the 90

days' imprisonment mandated by this subsection only after such person

has served 48 consecutive hours' imprisonment. The person convicted, if

placed under house arrest, shall be monitored by an electronic monitoring

device, which verifies the offender's location. The offender shall serve a

minimum of 2,160 hours of confinement within the boundaries of the

offender's residence. Any exceptions to remaining within the boundaries

of the offender's residence provided for in the house arrest agreement

shall not be counted as part of the 2,160 hours; and

(D) on a third or subsequent conviction a nonperson felony. The

person convicted shall be sentenced to not less than 90 days nor more

than one year's imprisonment and fined $2,500. The person convicted

shall not be eligible for release on probation, suspension or reduction of

sentence or parole until the person has served at least 90 days' impris-

onment. The 90 days' imprisonment mandated by this subsection may be

served in a work release program only after such person has served 72

consecutive hours' imprisonment, provided such work release program

requires such person to return to confinement at the end of each day in

the work release program. The person convicted, if placed into a work

release program, shall serve a minimum of 2,160 hours of confinement.

Such 2,160 hours of confinement shall be a period of at least 72 consec-

utive hours of imprisonment followed by confinement hours at the end

of and continuing to the beginning of the offender's work day. The court

may place the person convicted under a house arrest program pursuant

to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the 90

days' imprisonment mandated by this subsection only after such person

has served 72 consecutive hours' imprisonment. The person convicted, if

placed under house arrest, shall be monitored by an electronic monitoring

device, which verifies the offender's location. The offender shall serve a

minimum of 2,160 hours of confinement within the boundaries of the

offender's residence. Any exceptions to remaining within the boundaries

of the offender's residence provided for in the house arrest agreement

shall not be counted as part of the 2,160 hours.

(2) The court may order that the term of imprisonment imposed pur-

suant to subsection (b)(1)(C) or (b)(1)(D) be served in a state facility in

the custody of the secretary of corrections in a facility designated by the

secretary for the provision of substance abuse treatment pursuant to the

provisions of K.S.A. 2011 Supp. 21-6804, and amendments thereto. The

person shall remain imprisoned at the state facility only while participat-

ing in the substance abuse treatment program designated by the secretary

and shall be returned to the custody of the sheriff for execution of the

balance of the term of imprisonment upon completion of or the person's

discharge from the substance abuse treatment program. Custody of the

person shall be returned to the sheriff for execution of the sentence im-

posed in the event the secretary of corrections determines: (A) That sub-

stance abuse treatment resources or the capacity of the facility designated

by the secretary for the incarceration and treatment of the person is not

available; (B) the person fails to meaningfully participate in the treatment

program of the designated facility; (C) the person is disruptive to the

security or operation of the designated facility; or (D) the medical or

mental health condition of the person renders the person unsuitable for

confinement at the designated facility. The determination by the secretary

that the person either is not to be admitted into the designated facility or

is to be transferred from the designated facility is not subject to review.

The sheriff shall be responsible for all transportation expenses to and from

the state correctional facility.

(3) In addition, for any conviction pursuant to subsection (b)(1)(B),

(b)(1)(C) or (b)(1)(D), at the time of the filing of the judgment form or

journal entry as required by K.S.A. 22-3426 or K.S.A. 2011 Supp. 21-

6711, and amendments thereto, the court shall cause a certified copy to

be sent to the officer having the offender in charge. The court shall de-

termine whether the offender, upon release from imprisonment, shall be

supervised by community correctional services or court services based

upon the risk and needs of the offender. The risk and needs of the of-

fender shall be determined by use of a risk assessment tool specified by

the Kansas sentencing commission. The law enforcement agency main-

taining custody and control of a defendant for imprisonment shall cause

a certified copy of the judgment form or journal entry to be sent to the

supervision office designated by the court and upon expiration of the term

of imprisonment shall deliver the defendant to a location designated by

the supervision office designated by the court. After the term of impris-

onment imposed by the court, the person shall be placed on supervision

to community correctional services or court services, as determined by

the court, for a mandatory one-year period of supervision, which such

period of supervision shall not be reduced. During such supervision, the

person shall be required to participate in a multidisciplinary model of

services for substance use disorders facilitated by a department of social

and rehabilitation services designated care coordination agency to include

assessment and, if appropriate, referral to a community based substance

use disorder treatment including recovery management and mental

health counseling as needed. The multidisciplinary team shall include the

designated care coordination agency, the supervision officer, the social

and rehabilitation services department designated treatment provider and

the offender. Any violation of the conditions of such supervision may

subject such person to revocation of supervision and imprisonment in jail

for the remainder of the period of imprisonment, the remainder of the

supervision period, or any combination or portion thereof.

(4) In addition, prior to sentencing for any conviction pursuant to

subsection (b)(1)(A), the court shall order the person to participate in an

alcohol and drug evaluation conducted by a provider in accordance with

K.S.A. 8-1008, and amendments thereto. The person shall be required to

follow any recommendation made by the provider after such evaluation,

unless otherwise ordered by the court.

(c) Any person convicted of violating this section or an ordinance

which prohibits the acts that this section prohibits who had one or more

children under the age of 14 years in the vehicle at the time of the offense

shall have such person's punishment enhanced by one month of impris-

onment. This imprisonment must be served consecutively to any other

minimum mandatory penalty imposed for a violation of this section or an

ordinance which prohibits the acts that this section prohibits. Any en-

hanced penalty imposed shall not exceed the maximum sentence allow-

able by law. During the service of the enhanced penalty, the judge may

order the person on house arrest, work release or other conditional re-

lease.

(d) The court may establish the terms and time for payment of any

fines, fees, assessments and costs imposed pursuant to this section. Any

assessments and costs shall be required to be paid not later than 90 days

after imposed, and any remainder of the fine shall be paid prior to the

final release of the defendant by the court.

(e) In lieu of payment of a fine imposed pursuant to this section, the

court may order that the person perform community service specified by

the court. The person shall receive a credit on the fine imposed in an

amount equal to $5 for each full hour spent by the person in the specified

community service. The community service ordered by the court shall be

required to be performed not later than one year after the fine is imposed

or by an earlier date specified by the court. If by the required date the

person performs an insufficient amount of community service to reduce

to zero the portion of the fine required to be paid by the person, the

remaining balance of the fine shall become due on that date.

(f) Prior to filing a complaint alleging a violation of this section, a

prosecutor shall request and shall receive from the:

(1) Division a record of all prior convictions obtained against such

person for any violations of any of the motor vehicle laws of this state;

and

(2) Kansas bureau of investigation central repository all criminal his-

tory record information concerning such person.

(g) The court shall electronically report every conviction of a violation

of this section and every diversion agreement entered into in lieu of fur-

ther criminal proceedings on a complaint alleging a violation of this sec-

tion to the division. Prior to sentencing under the provisions of this sec-

tion, the court shall request and shall receive from the division a record

of all prior convictions obtained against such person for any violations of

any of the motor vehicle laws of this state.

(h) For the purpose of determining whether a conviction is a first,

second, third, fourth or subsequent conviction in sentencing under this

section:

(1) Convictions for a violation of K.S.A. 8-1567, and amendments

thereto, or a violation of an ordinance of any city or resolution of any

county which prohibits the acts that such section prohibits, or entering

into a diversion agreement in lieu of further criminal proceedings on a

complaint alleging any such violations, shall be taken into account, but

only convictions or diversions occurring: (A) On or after July 1, 2001; and

(B) when such person was 18 years of age or older. Nothing in this pro-

vision shall be construed as preventing any court from considering any

convictions or diversions occurring during the person's lifetime in deter-

mining the sentence to be imposed within the limits provided for a first,

second, third, fourth or subsequent offense;

(2) any convictions for a violation of the following sections which oc-

curred during a person's lifetime shall be taken into account, but only

convictions occurring when such person was 18 years of age or older: (A)

This section; (B) driving a commercial motor vehicle under the influence,

K.S.A. 8-2,144, and amendments thereto; (C) operating a vessel under

the influence of alcohol or drugs, K.S.A. 32-1131, and amendments

thereto; (D) involuntary manslaughter while driving under the influence

of alcohol or drugs, K.S.A. 21-3442, prior to its repeal, or subsection (a)(3)

of K.S.A. 2011 Supp. 21-5405, and amendments thereto; and (E) aggra-

vated vehicular homicide, K.S.A. 21-3405a, prior to its repeal, or vehicular

battery, K.S.A. 21-3405b, prior to its repeal, if the crime was committed

while committing a violation of K.S.A. 8-1567, and amendments thereto;

(3) ''conviction'' includes: (A) Entering into a diversion agreement in

lieu of further criminal proceedings on a complaint alleging a violation of

a crime described in subsection (h)(2); (B) conviction of a violation of an

ordinance of a city in this state, a resolution of a county in this state or

any law of another state which would constitute a crime described in

subsection (h)(1) or (h)(2); and (C) receiving punishment under the uni-

form code of military justice or Kansas code of military justice for an act

which was committed on a military reservation and which would consti-

tute a crime described in subsection (h)(1) or (h)(2) if committed off a

military reservation in this state;

(4) it is irrelevant whether an offense occurred before or after con-

viction for a previous offense;

(5) multiple convictions of any crime described in subsection (h)(1)

or (h)(2) arising from the same arrest shall only be counted as one con-

viction;

(6) the prior conviction that is an element of the crime of refusing to

submit to a test to determine the presence of alcohol or drugs shall not

be used for the purpose of determining whether a conviction is a first,

second, third or subsequent conviction in sentencing under this section

and shall not be considered in determining the sentence to be imposed

within the limits provided for a first, second, third or subsequent offense;

and

(7) a person may enter into a diversion agreement in lieu of further

criminal proceedings for a violation of this section, or an ordinance which

prohibits the acts of this section, only once during the person's lifetime.

(i) Upon conviction of a person of a violation of this section or a

violation of a city ordinance or county resolution prohibiting the acts

prohibited by this section, the division, upon receiving a report of con-

viction, shall suspend, restrict or suspend and restrict the person's driving

privileges as provided by K.S.A. 8-1014, and amendments thereto.

(j) (1) Nothing contained in this section shall be construed as pre-

venting any city from enacting ordinances, or any county from adopting

resolutions, declaring acts prohibited or made unlawful by this act as

unlawful or prohibited in such city or county and prescribing penalties

for violation thereof.

(2) The minimum penalty prescribed by any such ordinance or res-

olution shall not be less than the minimum penalty prescribed by this

section for the same violation, and the maximum penalty in any such

ordinance or resolution shall not exceed the maximum penalty prescribed

for the same violation.

(3) An ordinance may grant to a municipal court jurisdiction over a

violation of such ordinance which is concurrent with the jurisdiction of

the district court over a violation of this section, notwithstanding that the

elements of such ordinance violation are the same as the elements of a

violation of this section that would constitute, and be punished as, a fel-

ony.

(4) Any such ordinance or resolution shall authorize the court to or-

der that the convicted person pay restitution to any victim who suffered

loss due to the violation for which the person was convicted.

(k) (1) Upon the filing of a complaint, citation or notice to appear

alleging a person has violated a city ordinance prohibiting the acts pro-

hibited by this section, and prior to conviction thereof, a city attorney

shall request and shall receive from the:

(A) Division a record of all prior convictions obtained against such

person for any violations of any of the motor vehicle laws of this state;

and

(B) Kansas bureau of investigation central repository all criminal his-

tory record information concerning such person.

(2) If the elements of such ordinance violation are the same as the

elements of a violation of this section that would constitute, and be pun-

ished as, a felony, the city attorney shall refer the violation to the appro-

priate county or district attorney for prosecution.

(l) No plea bargaining agreement shall be entered into nor shall any

judge approve a plea bargaining agreement entered into for the purpose

of permitting a person charged with a violation of this section, or a vio-

lation of any ordinance of a city or resolution of any county in this state

which prohibits the acts prohibited by this section, to avoid the mandatory

penalties established by this section or by the ordinance. For the purpose

of this subsection, entering into a diversion agreement pursuant to K.S.A.

12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not

constitute plea bargaining.

(m) As used in this section, ''imprisonment'' shall include any re-

strained environment in which the court and law enforcement agency

intend to retain custody and control of a defendant and such environment

has been approved by the board of county commissioners or the govern-

ing body of a city.

(n) On and after July 1, 2012, the amount of $250 from each fine

imposed pursuant to this section shall be remitted by the clerk of the

district court to the state treasurer in accordance with the provisions of

K.S.A. 75-4215, and amendments thereto. Upon receipt of each such

remittance, the state treasurer shall credit the entire amount to the com-

munity corrections supervision fund established by K.S.A. 2011 Supp. 75-

52,113, and amendments thereto.

Also, there were amendements to numerous other statutes, including:

K.S.A. 8-1001

K.S.A. 8-1014 Driver License Suspensions

K.S.A. 8-1015 Driver License Modification

Contact a Kansas Drunk Driving Defense attorney at the firm who can help you understand the charges against you and possible defenses. We practice extensively and have represented hundreds of clients throughout Johnson County and cities including Olathe, Gardner, Lenexa, Overland Park, Shawnee, Leawood and Kansas City.